FILED

United States Court of Appeals

Tenth Circuit

October 15, 2014

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 14-6123

v.
SAMUEL RODRIGUEZ,
Defendant - Appellant.

Appeal from the United States District Court

for the Western District of Oklahoma
(D.C. Nos. 5:14-CV-00407-R and 5:12-CR-00012-R-1)

Samuel Rodriguez, Pro Se, Defendant-Appellant.

Robert Donald Gifford, II, United States Attorneys Office, Oklahoma City,
Oklahoma, for Plaintiff-Appellee.

Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

Mr. Samuel Rodriguez pleaded guilty to the distribution of five grams or

more of methamphetamine. The district court accepted the plea and sentenced Mr.
Rodriguez. In determining the sentence, the court applied an enhancement based
on a finding that Mr. Rodriguez was a career offender because he had at least two
earlier felony convictions for a crime of violence or a controlled substance. See
U.S. Sentencing Guidelines Manual 4B1.1(a). One of these convictions
involved simple assault under Texas Penal Code 22.01. The parties disagree on
whether the assault conviction involved a crime of violence.
In an earlier appeal, Mr. Rodriguezs attorney argued that the district court
should not have considered the Texas conviction a crime of violence. A panel of
this court rejected the argument, affirming the conviction.
Mr. Rodriguez then sought collateral relief, claiming that his attorney had
mishandled the issue both at sentencing and in the direct appeal. The district court
recharacterized the request as a motion to vacate the sentence under 28 U.S.C.
2255 and denied relief.
Mr. Rodriguez asks us for a certificate of appealability so that he can appeal
the denial of relief under 2255. With this request, Mr. Rodriguez also asks for
leave to amend the 2255 motion and to proceed in forma pauperis. We deny the
request for a certificate of appealability and dismiss the appeal. This dismissal
moots Mr. Rodriguezs related requests for leave to amend and leave to proceed in
forma pauperis.
2

I.

Simple Assault Under the Texas Statute: Violent or Nonviolent?

Underlying the claim is Mr. Rodriguezs belief that his Texas assault

conviction did not involve a crime of violence under the federal sentencing
guidelines.
In the prior appeal, we held that a crime would be considered violent if it
involved intent, but not recklessness. United States v. Rodriguez, 528 F. Appx
921, 924 (10th Cir. 2013) (unpublished). Mr. Rodriguez does not quarrel with this
conclusion.
Instead, he argues that the assault did not necessarily constitute a crime of
violence because the crime could have been triggered by recklessness. This much
of the argument is correct, for the Texas statute provides three different mental
states for an assault. One of them is recklessness, and another is intentional
conduct. See Tex. Penal Code 22.01(a)(1). 1
The resulting question is which mental state was required in Mr.
Rodriguezs criminal case. If it was intentional conduct, the offense would have
qualified as a crime of violence; if the required mental state was recklessness, the
offense would not have qualified as a crime of violence. And if the offense
involved a crime of violence, enhancement of the sentence would have been

The third mental state was knowingly. See Tex. Penal Code 22.01(a).
This mental state does not affect any of the issues in Mr. Rodriguezs request for
a certificate of appealability.
3

appropriate; if the offense did not involve a crime of violence, enhancement would
have been inappropriate.
II.

The Prior Judicial Decisions and the Claims

The district court concluded at sentencing that the Texas conviction

involved a crime of violence. On direct appeal, we upheld that ruling because

Texas court records showed that Mr. Rodriguez had pleaded guilty to intentional
conduct, as well as recklessness. Id. at 923-27.
In the proposed appeal involving his 2255 motion, Mr. Rodriguez alleges
mistakes by the prior Tenth Circuit panel, the district court, and his attorney
handling the sentencing and direct appeal.
III.

Need for a Certificate of Appealability

A certificate of appealability is necessary for Mr. Rodriguez to appeal. 28

U.S.C. 2253(c)(1)(B). We will issue a certificate only when the applicant makes
a substantial showing of the denial of a constitutional right. Id. at 2253(c)(2).
This showing requires a demonstration that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983), superseded by statute,
Antiterrorism and Effective Death Penalty Act of 1996, No. 104-132, 110 Stat.

1214, as recognized in Slack, 529 U.S. at 483-84). Under this test, Mr. Rodriguez
must show that the district courts resolution of the claim was either debatable or
wrong. Laurson v. Leyba, 507 F.3d 1230, 1231 (10th Cir. 2007) (quoting Slack,
529 U.S. at 484). We conclude that no reasonable jurist could regard the merits of
the 2255 motion as debatable or wrong.
IV.

Alleged Mistakes in Our Decision in the Direct Appeal

Mr. Rodriguez argues in part that we should reverse the denial of 2255

relief because we mistakenly decided the direct appeal. This argument has two
shortcomings: The claim was not part of the 2255 motion, 2 and our decision in
the direct appeal is law of the case. 3 For both reasons, any reasonable jurist would
recognize that we could not reverse the district courts denial of relief under
2255 even if we disagreed with the panels decision in the direct appeal.
V.

Alleged Mistake by the District Court in Denying 2255 Relief

In denying 2255 relief, the federal district court said that Mr. Rodriguez

could not relitigate classification of simple assault as a crime of violence because

2

See Payton v. United States, 436 F.2d 575, 577 (10th Cir. 1970) (declining
to consider an appellate claim that had not been presented in the claimants
2255 motion).
3

See Abernathy v. Wandes, 713 F.3d 538, 549 (10th Cir. 2013) ([U]nder
law-of-the-case doctrine, courts ordinarily would refuse to reconsider arguments
presented in a 2255 motion that were raised and adjudicated on direct appeal.);
see also United States v. Irving, 665 F.3d 1184, 1192-93 (10th Cir. 2011)
(declining to reconsider an argument raised in a 2255 motion that was decided
on direct appeal).
5

we had already decided the issue in the direct appeal. R. at 124. For this
statement, the district court cited United States v. Fennell, 207 F. Appx 916, 919
(10th Cir. 2006). Id. Mr. Rodriguez argues that reliance on Fennell was
misguided because he had not previously alleged ineffective assistance of counsel.
We believe Mr. Rodriguez misunderstood the district courts citation of
Fennell. The district court did not question whether Mr. Rodriguez can allege
ineffective assistance of counsel under 2255. The court was simply expressing
its belief that Mr. Rodriguez was trying to relitigate an issue already decided. He
was. As noted above, Mr. Rodriguez is seeking a certificate of appealability in
part so that he can argue that the panel had incorrectly decided his direct appeal.
In these circumstances, no reasonable jurist could credit Mr. Rodriguezs
argument for reversal based on the district courts citation of Fennell.
VI.

Alleged Mistakes by Mr. Rodriguezs Prior Attorney: Ineffective

Assistance of Counsel
Mr. Rodriguez also seeks to appeal on the ground that his prior attorney

provided ineffective assistance by failing to argue that his prior conviction

involved an indivisible offense, by failing to obtain relevant documents from his
prior state case, and by failing to seek certiorari in the United States Supreme
Court. No reasonable jurist could credit any of these claims.

A.

Standard for Ineffective Assistance of Counsel

To prevail on his ineffective-assistance claims, Mr. Rodriguez would

ultimately need to show that
!

his counsels representation fell below an objective standard of

reasonableness and

there is a reasonable probability that, but for counsels

unprofessional errors, the result of the proceeding would have been
different.

Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).

B.

The Attorneys Characterization of Mr. Rodriguezs Prior Crime

as a Divisible Offense

Mr. Rodriguez argues in part that his prior attorney had taken the wrong
approach in challenging the courts classification of his prior offense (simple
assault) as a crime of violence. She argued that the crime was divisible, and
Mr. Rodriguez alleges that the attorney should have argued that the crime was
indivisible. Mr. Rodriguezs allegation is misguided, and no reasonable jurist
could regard the attorneys approach as deficient or prejudicial.
1.

The Texas Assault Statute: Divisible or Indivisible?

There are two ways to determine whether an offense involves a crime of

violence: a categorical approach and a modified categorical approach. See
United States v. Wise, 597 F.3d 1141, 1144 (10th Cir. 2010). The categorical
approach involves examination of the statutory definition of the offense, rather
7

than the particular facts of the case. United States v. Charles, 576 F.3d 1060,
1067 (10th Cir. 2009). The modified categorical approach is used when the
statute is ambiguous or broad enough to cover crimes that are both violent and
nonviolent. Id. In these circumstances, the court can use records from the prior
case to determine which part of the statute was charged. Id.
Selection of the approach turns on whether the prior offense is considered
divisible or indivisible. See Descamps v. United States, ___ U.S. ___, 133 S.
Ct. 2276, 2281 (2013) (explaining that the modified categorical approach applies
to divisible statutes). A crime is considered divisible when it sets out the
elements in the alternative. Id. at 2281. A crime is indivisible when it provides
only a single set of elements. Id.
When Mr. Rodriguez was sentenced, we had already held that the
sentencing court could consult judicial records to determine whether a prior
conviction under the same Texas statute (Texas Penal Code 22.01) had involved
intentional conduct or recklessness. United States v. Zuniga-Soto, 527 F.3d 1110,
1121-22 (10th Cir. 2008); 4 see also United States v. Ramirez, 606 F.3d 396, 397-

In Zuniga-Soto, we stated that 22.01(a)(1)s mens rea component is

grammatically divisible and that the court could consider the state judicial
records to identify the part of the statute that had been charged. Zuniga-Soto, 527
F.3d at 1122. The state judicial records showed that the charge included reckless
conduct. Id. Thus, we held that the actual charge under 22.01(a)(1) did not
qualify as a crime of violence under Sentencing Guideline 2L1.2. Id. at 1123-24.
8

98 (7th Cir. 2010) (holding that Texas Penal Code 22.01(a)(1) is divisible
because it covers three possible mental states).
When the pre-sentence report classified Mr. Rodriguez as a career offender,
his attorney objected. In the objection, the attorney treated the crime as
divisible, but argued that the offense should be considered nonviolent because
the plea petition had not identified the elements and the plea reflected only a
blanket acknowledgment of guilt. R. at 154. The district court rejected that
argument, and a Tenth Circuit panel upheld the sentence because the indictment
required intentional conduct in addition to recklessness. United States v.
Rodriguez, 528 F. Appx 921, 923-27 (10th Cir. 2013) (unpublished).
2.

Deficiency

Mr. Rodriguez alleges that his attorney should have argued at sentencing
and in the appeal that
!

the offense was indivisible (rather than divisible) and, as a result,

the court could not refer to judicial documents from the prior
proceeding to determine whether the prior offense had involved
violence.

In Mr. Rodriguezs view, these arguments would have prevailed under Descamps
v. United States, ___ U.S. ___, 133 S. Ct. 2276 (2013), and Marrero v. United
States, ___ U.S. ___, 133 S. Ct. 2732 (2013) (mem.).

Mr. Rodriguezs allegation would not sway any reasonable jurist because
Descamps and Marrero did not affect our circuits method of distinguishing
between divisible and indivisible offenses. In Descamps, the Supreme Court
simply held that judicial documents could not be consulted when the crime
involves an indivisible statute. Descamps, 133 S. Ct. at 2283; see United States v.
Trent, 12-6283, slip op. at 17 (10th Cir. Sept. 25, 2014) (pending publication)
(stating that in Descamps, the Supreme Court did not suggest in any way that it
was retreating from its application of [the modified categorical approach] in
previous cases). And in Marrero, the Court simply remanded for reconsideration
in light of Descamps. Marrero, 133 S. Ct. at 2732. After Descamps and Marrero,
the ultimate question remains: Was the Texas Penal Statute 22.01 divisible or
indivisible? We held in the direct appeal that the offense was divisible. United
States v. Rodriguez, 528 F. Appx 921, 925 (10th Cir. 2013) (unpublished).
Mr. Rodriguez argues that his attorney should have taken a different
approach in light of Descamps and Marrero. Even in hindsight, no reasonable
jurist could regard defense counsels approach as deficient because the Supreme
Courts opinions in Descamps and Marrero did not address whether the prior
crime was divisible or indivisible.
As noted above, the Supreme Court did not face the divisibility of a statute
in Descamps. The issue did arise in the Third Circuits decisions in Marrero.
There, the issue was whether a Pennsylvania conviction for simple assault
10

involved a crime of violence for purposes of the sentencing enhancement.

United States v. Marrero, 677 F.3d 155, 160 (3d Cir. 2012). Like Texas,
Pennsylvania provided three alternative mental states that could result in guilt:
intentionally, knowingly, or recklessly. Id. (quoting 18 Pa. Cons. Stat. Ann.
2701(a)). The Third Circuit Court of Appeals held that the statute was
divisible and that, as a result, the sentencing court could consult judicial records
from the state case to identify the statutory language involved in the charge. Id. at
161-62.
Six days before we issued a decision in Mr. Rodriguezs appeal, the
Supreme Court issued a memorandum decision, vacating the Third Circuits
judgment and remanding for further consideration in light of Descamps. Marrero,
133 S. Ct. at 2732.
On remand, the Third Circuit Court of Appeals again held that the crime
was divisible, which allowed consultation of state judicial records to determine
whether the charge involved conduct that was intentional, knowing, or
reckless. United States v. Marrero, 743 F.3d 389, 395-97 (3d Cir. 2014). 5

Following Descamps, the First Circuit Court of Appeals also applied the
modified categorical approach (permitting consultation of state judicial
documents to identify the pertinent charge) when a state statute allowed either
intentional or reckless conduct to suffice for the mens rea. See United States
v. Carter, 752 F.3d 8, 17 (1st Cir. 2014) (assault based on intentional, knowing,
or reckless conduct).
11

With the benefit of Descamps and Marrero, no reasonable jurist could

question the reasonableness of Mr. Rodriguezs legal representation. The attorney
never conceded the applicability of the sentencing enhancement. In fact, she
challenged its applicability by arguing that the Texas crime did not involve
violence.
She did acknowledge that the sentencing judge could consult the state
judicial records to identify the parts of the statute involved in the charge. But she
had little choice, for we had already held in Zuniga-Soto that a sentencing judge
could consult state judicial records when deciding whether the charge involved
intentional or reckless conduct in a prosecution under Texas Penal Code
22.01(a).
Faced with the precedent in Zuniga-Soto, Mr. Rodriguezs attorney argued
that the state judicial documents did not clarify the nature of the underlying charge
because the guilty plea constituted a simple blanket acknowledgment of guilt. R.
at 81 (in district court), 154 (on direct appeal). We ultimately rejected this
argument, but it was a reasonable strategy. In fact, two months after our decision
in Mr. Rodriguezs direct appeal, a virtually identical argument prevailed in
United States v. Espinoza, 733 F.3d 568 (5th Cir. 2013). There the Fifth Circuit
Court of Appeals declined to apply the enhancement when the defendant pleaded
guilty to an indictment containing multiple mens rea standards, reasoning that the

12

defendants blanket statement in the plea did not constitute an admission to

every listed category of mental culpability. Espinoza, 733 F.3d at 572. 6

The arguments by Mr. Rodriguezs attorney closely resembled the

arguments by defense counsel in Espinoza.
For example, Mr. Rodriguezs attorney argued to the judge that the plea
papers were boilerplate and did not contain a case-specific, detailed statement or
confession. R. at 154. Similarly, the attorney argued in the direct appeal:
Nowhere does the Judicial Confession or Notice contain a casespecific, detailed statement or confession. Nowhere in the record do we
find a recorded or transcribed declaration of a factual basis or plea
colloquy. Thus, there is nothing from which the Court can discern
specifically what elements were in fact admitted by Mr. Rodriguez or
found by the state court. In response to Mr. Rodriguezs objection, at
the sentencing hearing the government (which bore the burden of proof)
presented nothing to show what was contained in the state plea colloquy
or meaningful factual basis. Thus, it is not known if Mr. Rodriguez
admitted to all four of the separate acts charged in Count II, or fewer.
More importantly for the purposes of crime of violence designation, it
is not known which of the three possible mens reas he admitted to
having.
Id. at 81-82.
In Espinoza, defense counsel made a similar argument:
The state indictment alleged three mental states in the conjunctive:
intentionally, knowingly, and recklessly. When the charging papers for
a prior conviction are in the conjunctive, this Court looks to the least
culpable means of committing the offense to determine whether the
particular offense subjects a defendant to enhanced federal punishment.
The least culpable mental state for committing the Texas felony assault
offense is recklessness. [The defendant] admitted only what was
necessary to plead guilty. No mental state was specified in his
admission. The determination whether [the defendants] offense is a
violent felony for [purposes of the Armed Career Criminal Act] must
therefore be made using the least culpable mental state
chargedrecklessness.
13

Mr. Rodriguez criticizes his attorney not only for the way that she addressed
the issue at sentencing and in her brief on direct appeal, but also for failing to cite
the Supreme Courts decisions in Descamps or Marrero. But she could not have
cited the cases in her briefs because they did not exist yet. 7
She did have an opportunity to address the decisions by submitting a letter
under Federal Rule of Appellate Procedure 28(j), alerting the Tenth Circuit panel
to new authorities. But, that was unnecessary because the government had already
submitted two 28(j) letters, alerting the panel to both Descamps and Marrero.
Mr. Rodriguez argues that his attorney could have responded to the
governments 28(j) letters. Why would she have done that?
In the first letter, the government stated only that
!

the Descamps Court had allowed consideration of judicial documents

only if the statute was divisible, and

the government regarded the Texas assault statute as divisible.

Letter from Robert Don Gifford to Elizabeth Shumaker, United States v.

Rodriguez, No. 12-6285 (10th Cir. June 26, 2013). Mr. Rodriguezs attorney had
little reason to question either statement: Her theory was consistent with what the

Def.s Reply Br. at 5-6, United States v. Espinoza, 2012 WL 1878696 (5th Cir. May
14, 2012) (citations omitted).
7

The deadline for a reply brief in the direct appeal was June 3, 2013, which
was 17 days before the Supreme Courts decision in Descamps and 24 days before
the Courts memorandum decision in Marrero.
14

government had said, for she was arguing that the Texas statute involved a
nonviolent crime because the plea statement had not identified the relevant
statutory language.
Mr. Rodriguez also faults his attorney for failing to alert the Tenth Circuit
panel to the Supreme Courts memorandum decision in Marrero. We again
wonder why the attorney would have done that. Six days after Marrero was
issued, the government filed a second 28(j) letter, advising the Tenth Circuit panel
of the Supreme Courts memorandum decision. Letter from Robert Don Gifford to
Elizabeth Shumaker, United States v. Rodriguez, No. 12-6285 (10th Cir. July 3,
2013). The letter said little about the decision, for there was not much to say. Id.
The Supreme Courts discussion of the sentencing issue consisted of one
sentence, stating without explanation that the Court was vacating the judgment and
remanding for reconsideration of the week-old decision in Descamps. Marrero v.
United States, ___ U.S. ___, 133 S. Ct. 2732 (2013) (mem.).
Even if Mr. Rodriguezs attorney could have crafted an argument to respond
to the governments letter, she would not have had time to do so because the panel
decided the appeal within three hours of the governments Rule 28(j) letter.
In these circumstances, no reasonable jurist could regard the legal
representation as deficient for failure to argue that the Texas assault statute was
indivisible or to tell the sentencing judge or the appeal panel about Descamps or
Marrero.
15

3.

Prejudice

But, for the sake of argument, we may assume that the attorney should have
done all of that. Even then, Mr. Rodriguez would have had to prove a probability
of a different result if his attorney had taken a different position based on
Descamps or Marrero. Mr. Rodriguez could not convince any reasonable jurist
that he probably would have had a better outcome.
To determine whether the attorneys strategy was prejudicial, we project
what would have happened if the attorney had argued to the sentencing judge that
he could not review the state judicial records to identify the relevant statutory
language. The sentencing judge would have been obliged to reject that position in
light of Zuniga-Soto.
What would have happened on appeal if the attorney had raised Descamps
and Marrero? The same thing that did happen, for the Tenth Circuit panel was
alerted to both opinions and still upheld the sentence.
4.

Summary

In these circumstances, we conclude that no reasonable jurist could credit

the ineffective-assistance claim based on the attorneys strategy. In the district
court and on appeal, Mr. Rodriguezs attorney opposed classification of the Texas
assault conviction in a manner consistent with our precedents. The attorneys
approach was neither deficient nor prejudicial.

16

C.

The Attorneys Alleged Failure to Obtain Judicial Documents

Regarding the Texas Conviction

In the direct appeal, Mr. Rodriguezs attorney referred to judicial documents

underlying the Texas conviction for simple assault. Doing so, the attorney noted
that the state judicial documents had been omitted in the district court record. Mr.
Rodriguez infers from this remark that the attorney had neglected to get the
documents. The federal district court rejected this argument, pointing out that the
court had sentenced Mr. Rodriguez with the benefit of the state judicial records.
No reasonable jurist would credit the claim that the attorney failed to obtain
the Texas documents. Mr. Rodriguez simply misunderstands his attorneys
remark. The attorney referred to the Texas documents in the pre-sentence report,
stating that she had obtained the state indictment and judgment and referring to the
state courts notice. Defense counsel used these documents to argue her position
to the sentencing judge and in the direct appeal. Thus, no reasonable jurist could
credit the ineffective-assistance claim based on the attorneys supposed failure to
obtain the Texas documents.
D.

The Attorneys Alleged Failure to Seek Certiorari in the Supreme

Court

Mr. Rodriguez also contends that his attorney should have sought Supreme
Court review in the direct appeal. No reasonable jurist would find this contention
debatable for two reasons: (1) This contention did not appear in the 2255

17

motion; 8 and (2) there is no constitutional right to effective assistance of counsel

relating to requests for certiorari review in the United States Supreme Court. 9
VII. Disposition of the Application for a Certificate of Appealability
Because no reasonable jurist would find the 2255 motion reasonably
debatable, we deny a certificate of appealability. Based on the absence of a
certificate, we dismiss the appeal.
VIII. Motion for Leave to Amend the 2255 Motion
Mr. Rodriguez not only wants to appeal, but also to amend the 2255
motion. With dismissal of the appeal, we deny the motion for leave to amend on
the ground of mootness. 10

See Payton v. United States, 436 F.2d 575, 577 (10th Cir. 1970) (declining
to consider an appellate claim that had not been presented in the claimants
2255 motion).
9

See Austin v. United States, 513 U.S. 5, 8 (1994) (per curiam) (holding that
there is no constitutional right to counsel in forums offering discretionary
review); Wainwright v. Torna, 455 U.S. 586, 587 (1982) (per curiam) (holding
that because a habeas petitioner had no right to counsel in appealing to the state
supreme court, an attorneys failure to timely appeal could not have resulted in
denial of effective assistance of counsel).
10

The Court cannot tell which claims Mr. Rodriguez wants to add to his
2255 motion. It appears that he may be seeking to add the claims regarding his
attorneys failure to: (1) address Descamps and Marrero in a 28(j) letter, and (2)
file a petition for certiorari in the United States Supreme Court. Because we are
not sure what Mr. Rodriguez wants to add and is pro se, we liberally construe his
application for a certificate of appealability to address these issues in connection
with his appeal (as well as possible amendments to the 2255 motion). See
Sigala v. Bravo, 656 F.3d 1125, 1126 (10th Cir. 2011) (liberally construing an
application for a certificate of appealability in light of the claimants pro se
18

IX.

Request for Leave to Proceed In Forma Pauperis

Mr. Rodriguez requests leave to proceed in forma pauperis. Because we are

dismissing the appeal, we deny the request for leave to proceed in forma pauperis
on the ground of mootness. See Johnson v. Keith, 726 F.3d 1134, 1136 (10th Cir.
2013) (denying leave to proceed in forma pauperis on the ground of mootness upon
denial of a certificate of appealability).

status).
19